NC Journal of Law & Technologyhttp://ncjolt.org
A Premier Law and Tech JournalWed, 11 Sep 2019 17:12:18 +0000en-US
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1 Tech-Enabled Tourism fighting a continued legal battle in North Carolinahttp://ncjolt.org/tech-enabled-tourism-fighting-a-continued-legal-battle-in-north-carolina/
Wed, 11 Sep 2019 17:12:08 +0000http://ncjolt.org/?p=6357 Websites like Airbnb, VRBO, and HomeAway have quickly become household names, known for their short-term rentals that are easily reserved on their websites and mobile applications. These popular sites are an online marketplace that allow hosts to earn an income from their properties, whether that might be an empty house, apartment, room, or shared […]

]]> Websites like
Airbnb, VRBO, and HomeAway have quickly become household names, known for their
short-term rentals that are easily reserved on their websites and mobile
applications. These popular sites are an online marketplace that allow hosts to
earn an income from their properties, whether that might be an empty house,
apartment, room, or shared space. The websites are an intermediary that connect hosts to
travelers that are looking to stay in the area and have expanded the market
for travel accommodations to cities small and large, from New York City to
Banner Elk, North Carolina.

Guests enjoy the
ease of booking on their websites and many individuals prefer to stay at these
short-term rentals because they can be less expensive for more space and
provide a unique experience by staying in a home rather than a hotel. As these
sites have grown, short-term rentals have boosted the economy in cities by
providing more lodging, promoting tourism, and giving local homeowners
additional income. However, local governments
have become concerned about the negative impact of these short-term rentals on
the local communities. A large number of rentals in a city may contribute to
housing shortages and lessens the possibilities for individuals to make an area
their permanent home. Current residents are also concerned about introducing
short-term rental properties and tourism into residential
neighborhoods. Among these concerns are worries about increased numbers of
cars on the street, loud neighbors, and safety risks.

Several cities,
including Chicago, New York, and San Francisco, have passed legislation aimed
at regulating
short-term rentals. In attempts to control these companies, cities have taxed
them, limited the number of days places can be rented, limited the rentals to
certain zoning areas, and have even banned
short-term rentals in their communities. Despite numerous regulations, local
authorities have had difficulties enforcing the laws because of the high volume
of rentals, hosts, and different websites. Authorities are needing to turn to
data searching tech tools
in order to find and monitor illegal rentals.

Larger cities
have had ongoing legal battles with short-term rental companies and some, such
as San Francisco, have developed a cooperative
partnership with websites like Airbnb. Other cities have spent years working on
regulatory legislation and are still struggling to create and enforce laws with
the desired effect. New York City
created some of the strictest legislation, banning short-term rentals unless
the host is present, but thousands of illegal rentals continue to proliferate
in the area.

North Carolina
cities have also seen an increase in the number of short-term rentals over the
past few years. Travelers are drawn to the state’s coasts for beautiful
beaches, like Wrightsville, mountains for hiking, like Asheville, and cities
for work, like Charlotte. In Wilmington, North Carolina, local authorities have
spent years holding public meetings and debating legislation to regulate the
short-term rental economy. When these companies originally began to host in Wilmington,
the city’s land development code did not apply to these types of rentals. In
January, whole-house rentals were approved to be in residential districts, but
not without limitations.
These whole-house rentals may not allow events, must be 400 feet from another
rental, and must register with the city annually for a cost of $300, along with
several other requirements.

In addition to Wilmington,
some North Carolina cities have passed legislation regulating short-term
rentals, while others have left it to zoning ordinances
already in place. In Raleigh, North Carolina, authorities have agreed to allow
short-term rentals, but not of entire homes. The new legislation requires hosts
to notify
neighbors, purchase a rental permit, limit guests to two adults, and does
not allow for events to be held at rentals. Hosts that are in violation of
these regulations risk being fined $500 a day.

Although Raleigh
began to finalize the new
legislation in May, “Governor Cooper signed into law Senate Bill 483, a one-page clarification to the Vacation
Rental Act” in July, which may preempt the new legislation. The new senate bill
prohibits local governments from requiring hosts to obtain a permit to rent
their property, which is one of the requirements of the new rental legislation.
The developments of these legislations are quickly changing and the interaction
of the two will be addressed in the coming months.

The popularity of short-term rentals has continued to grow despite the increasing legal battles between the companies and the cities they conduct business in. As more rentals continue to pop-up, more regulations do as well, and the legal issues will continue to abound. The legal community, as well as homeowners and rental hosts, should keep a close watch on cities like Raleigh that not only have legislation pending, but also have conflicts with current state rental and zoning regulations. The results of new rental legislation passed will have a broad impact that will reach not only local authorities but also short-term rental companies, homeowners, rental hosts, and travelers.

]]>E-scooters: The Popular Electric Device Confounding Lawyers and Lawmakers Alikehttp://ncjolt.org/e-scooters-the-popular-electric-device-confounding-lawyers-and-lawmakers-alike/
Tue, 10 Sep 2019 22:09:11 +0000http://ncjolt.org/?p=6352In the past few years, e-scooter rideshare companies, like Bird and Lime, have popped up in major cities around the United States, including North Carolina cities Charlotte, Raleigh, and Durham. The e-scooters are so popular in Charlotte that riders have logged over one million miles. Users can simply download the company’s app on their phone, […]

In the past few years, e-scooter rideshare companies, like Bird and Lime, have popped up in major cities around the United States, including North Carolina cities Charlotte, Raleigh, and Durham. The e-scooters are so popular in Charlotte that riders have logged over one million miles. Users can simply download the company’s app on their phone, enter credit card information, tap a button to unlock a nearby rental e-scooter, and start riding. The scooters typically have a maximum speed of 15 miles per hour, and users pay for the rental by the minute. The scooters are dockless, meaning there is no designated return area for the scooter, although the companies recommend avoiding public pathways.

E-scooter Liability
Issues

Riders of e-scooters frequently suffer from lacerations, head injuries, and broken bones. E-scooters have been blamed for approximately 1,500 injuries in 2018, and eleven deaths, including the death of a popular YouTuber. A limited study of 249 Californians by JAMA Network revealed that even pedestrians aren’t safe from the wrath of e-scooters, and they make up approximately eight percent of those injured. The study has been criticized by a Bird executive for “fail[ing] to take into account the sheer number of trips taken,” but, a proposed class-action suit in California begs to differ. On behalf of eight plaintiffs, the lawsuit accuses e-scooter distributors, including Lime and Bird, of “gross negligence” and “aiding and abetting assault.” The complaint goes on to criticize the defendants’ “guise of the commendable goals of furthering personal freedom and mobility and protecting the environment,” and accuses each of them of “endangering the health, safety and welfare of riders, pedestrians and the general public” by negligently allowing the scooters to become a “public nuisance” due to the dockless model of allowing users to leave the scooters on public streets.

Importantly, the class action suit was filed by pedestrians, not e-scooter riders. When riders download these companies’ apps, they also agree to the companies’ terms and conditions, which include liability waiver, arbitration, and class action waiver clauses. This has created issues for personal injury lawyers, whose clients often do not realize that they waived liability before they were seriously injured. “I’ve been practicing law for 25 years representing personal injury victims. . . I have never seen these kind of devastating injuries before scooters arrived,” said Catherine Lerer, whose law firm filed the class-action complaint. The frequency and severity of injuries has baffled lawyers, and, despite low prospects of winning, many attorneys are willing to challenge the legality of the contracts to seek relief for their clients. Putting aside user fault, many people have been injured by technical malfunctions, or “scoot-and-run” situations where the rider can’t be identified.

Lawmakers Are Struggling
to Keep Pace with a 15 MPH Scooter

There has been endless controversy over how to regulate these electric devices. Some college campuses, a popular audience for e-scooter companies, have banned or severely limited e-scooter use on campus. Arizona University justified its restrictions due to concerns about the “safety of e-scooters and their potential to limit accessibility on campus, especially for those with disabilities[.]” The University of Oregon banned the use of rental e-scooters entirely (but not individually owned scooters). Oklahoma State University initially banned e-scooters, but now allows them under limited conditions.

Cities and states are slowly figuring out how to regulate these devices, but not all of these regulations are well-received. Just last month, Atlanta banned nighttime use of e-scooters and e-bikes on city streets. The curfew was imposed after four e-scooter riders were killed by drivers at night. The city plans to develop “further long-term measures” but decided to impose the curfew for the safety of “scooter riders, motorists, cyclists, those in wheelchairs and pedestrians.” Critics, however, accuse the curfew of being “nonsensical” and “penaliz[ing] micro-mobility users while letting the operators of 3,000-pound killing machines off scot-free.”

Would these scooters be causing so much hassle if they weren’t electric?

It stands to reason that if the scooters weren’t electrically powered, and made so easily accessible through rideshare companies, that maybe injuries, lawsuits, and regulator confusion wouldn’t be so prevalent. The small component of this electric motor has befuddled lawmakers and users alike. Some cities (looking at you, Denver) still classify e-scooters as “toys” and allow them to be ridden on sidewalks, despite the known danger to pedestrians. Some cities that allow e-scooters classify them as “vehicles” (akin to an e-bike or moped) allowing e-scooter riders on public streets, but prohibiting e-scooter use on public sidewalks. Even though the sidewalk bans are in place, enforcement seems few and far between. Some regulators worry that violators will be undeterred by the prospect of a receiving a fine.

Some argue that the federal government “should standardize electric scooter laws[,] and license requirements should be considered to decrease the risky behaviors associated with motorized scooter use.” This concern for standardization mostly stems from differing helmet laws. In New Jersey and California, e-scooters are regulated like traditional bicycles, and helmets are only required for people under 17 years old. In the JAMA Network study discussed earlier, the mean age of e-scooter injured patients was about 38 years old, and less than eleven percent of riders were under the age of 18.

E-scooter Haters and
Enthusiasts

If you disagree with the implementation of e-scooter sharing systems in your city, or just have an unfounded hatred of e-scooters, you’re not alone. The Instagram account Bird Graveyard (@birdgraveyard) was created by an e-scooter critic in 2018. The account’s creator believes the scooters are “just counterproductive to public transit, and they’re not being used for the right reasons by the right people.” The account features images and videos of e-scooters on fire, in toilets, thrown into lakes, piled in streets, hit with bats, and even being pooped on. The page also includes an abundance of videos of e-scooter riders getting injured.

However, despite the setbacks, not everyone is an e-scooter critic. Enthusiasts laud the “micromobility” of e-scooters. Micromobility is the general term for transportation using rideshare services with small weight vehicles that can be operated in bike lanes (such as bicycles, e-bicycles, and e-scooters). The idea is that if people turn to e-scooters for short distance travelling, the use of cars would decrease, and this could alleviate traffic congestion, pollution concerns, and possibly prevent deadly car accidents.

There are pros and cons to e-scooter use. But, given how quickly e-scooters have spread throughout major U.S. cities, state legislatures need to act quickly to protect users and pedestrians, many of whom are unable to seek legal redress for their e-scooter woes.

]]>How Tech Companies Can Help Combat Decreasing Protections for LGBTQ+ Access to Health Carehttp://ncjolt.org/how-tech-companies-can-help-combat-decreasing-protections-for-lgbtq-access-to-health-care/
Mon, 09 Sep 2019 01:22:43 +0000http://ncjolt.org/?p=6342 In January of 2018, the Trump Administration founded a new division within the Office of Civil Rights (OCR) known as the Conscience and Religious Freedom Division, to “restore federal enforcement of our nation’s laws that protect the fundamental and unalienable rights of conscience and religious freedom.” Since then there has been a regulatory trend […]

]]> In January of 2018, the Trump Administration founded a new division within the Office of Civil Rights (OCR) known as the Conscience and Religious Freedom Division, to “restore federal enforcement of our nation’s laws that protect the fundamental and unalienable rights of conscience and religious freedom.” Since then there has been a regulatory trend of rolling back protections for LGBTQ+ access to health care. Tech companies have begun addressing this problem by developing apps to connect LGBTQ+ patients to care.

In May of 2019, the Conscience and Religious Freedom Division published a final rule to “protect individuals, providers and other health care entities from having to provide, participate in, pay for, provide coverage of, inform patients about or refer services concerning” specific procedures such as abortion, sterilization, and assisted suicide as well as “any procedures that are against [employees’] religious or moral beliefs.” The regulation expands 25 existing statutes protecting against discrimination and retaliation for refusing to take part in the delivery of care for religious and moral reasons.

However, the broader implementation of these statutes is aimed at more forcefully protecting entity and individual rights to refuse care may cause significantly more discrimination barring access to care for LGBTQ+ patients, as it covers gender-affirming therapy and surgeries as well as HIV+ care.

The language of the rule protects any service provider “with an articulable connection” to the care provided. This means that not only doctors and nurses are covered, but also receptionists, pharmacists, EMS providers, and medical transporters within hospital walls. While the rule allows employers to require disclosure of all religious and moral objections before beginning work, it has no guidance for how healthcare providers can protect patient access to care with their existing workforce. Employers may provide alternative staff to replace an objecting employee, however in rural communities where hospitals are frequently understaffed, this may not be possible.

The
implementation of this final rule, originally scheduled for July 22, 2019, has
been delayed
until November 22, 2019 amidst litigation
by several states. Opponents contend that the rule is “unconstitutional under
the Spending Clause and the First and Fifth amendments as well as unlawful
under the Administrative Procedure Act (APA).” LGBTQ+ patients, especially
those who identity as transgender, already face significant health disparities
and difficulties accessing care free from discrimination. This regulation will
likely further exacerbate these problems and decrease access to care further.

The National Institute on Minority Health and
Health Disparities (NIMHD), a sector of the NIH, studies health disparities
and researches how to decrease their impact on underserved populations. Sexual
and Gender Minorities were identified as an underserved minority population
that faces health disparities in 2015. Since then the Institute has focused on
researching origins and solutions for this disparity. On August 30th,
2019 the NIMHD published a notice
that they will be increasing the
definition of sexual and gender minorities in an effort to become more
inclusive of those affected by this disparity. According to the NIMHD, “[sexual
and gender minorities] face unique health challenges, and a continually growing
body of evidence suggest that [they] suffer disproportionately from a variety
of conditions and diseases.” As continued and increasing amounts of
discrimination against these populations is sanctioned by the Trump
Administration, this disparity will likely expand significantly.

To further compound the issue of LGBTQ+ heath
disparities, should a transgender patient wish to challenge the discrimination
they face due to their gender identity, the Affordable Care and Patient
Protection Act will no longer protect them. On June 14, 2019 the Department of
Health and Human Services (DHHS) proposed substantial revisions to §1557 of the
ACA, that would “eliminate the general prohibition on discrimination based on
gender identity as well as specific health insurance coverage protections for
transgender individuals.” This proposed rule rolls back the 2016 expansion of
the definition of “sex discrimination,” challenged and immediately enjoyed by
courts after its implementation for incongruence with Title IX. The comment
period for DHHS’ proposed rule closed on August 13th, and DHHS is
expected to publish their final rule in the coming weeks. If finalized, this
rule could be implemented concurrently with the final conscience rule.

To combat this
lack of access to care, tech companies are coming to the rescue. Pennsylvania
medical students developed the app SpectrumScores
in late 2017 with the goal of connecting patients to LGBTQ+ competent medical
providers. This app allows you to search for providers according to practice
area or ailment and, similar to Yelp, a list of providers appears with scores
compiled from reviews left by app users.

Information is power, and further development of applications that connect those seeking care to safe and reliable care will be crucial in the current regulatory landscape that is working to increase disparities further.

]]>Riding the Tech Wave: North Carolina State Bar Adds a Technology Component to its CLE Requirementshttp://ncjolt.org/riding-the-tech-wave-north-carolina-state-bar-adds-a-technology-component-to-its-cle-requirements/
Wed, 04 Sep 2019 14:12:07 +0000http://ncjolt.org/?p=6337Technology is advancing at an ever-increasing rate, and the legal field is no stranger to its implementation. From billing services to electronic filing systems, technology is continuing to revolutionize the practice of law while making the hectic day-to-day routine a bit more manageable. However, with the benefits of evolving technology comes the dreaded challenge of […]

Technology is advancing at an ever-increasing rate, and the legal field is no stranger to its implementation. From billing services to electronic filing systems, technology is continuing to revolutionize the practice of law while making the hectic day-to-day routine a bit more manageable. However, with the benefits of evolving technology comes the dreaded challenge of learning how to use something new. Luckily, The North Carolina State Bar has taken steps to address this issue.

As of 2019, all attorneys licensed in North Carolina must complete one hour of technology training as part of the annual, twelve hour Continuing Legal Education (CLE) requirements. Time will tell how the technology requirement evolves, but there’s a few things we know for certain:

How does the North
Carolina State Bar define “technology training”?

Technology training
is a “program, or a segment of a program, devoted to education on information
(IT) or cybersecurity . . . including education on an information technology
product, device, platform, application, or other tool, process or methodology.”

Is the requirement
limited to technology as it applies to the legal field?

Yes. Even though it’s
tempting to spend an hour learning how to download your favorite Netflix show,
this requirement strictly focuses on technology’s overlap with the legal field.
Accredited programs
are designed to increase an attorney’s competence and proficiency with
technology. Examples include
training regarding e-discovery, online filing, and office management
software.

How can you fulfill this
technology requirement?

If you’re a busy
attorney who already travels more than you’d like, the North Carolina Bar
Association has got your back. It offers a variety of options
that fulfill the technology requirement, with most all of them being in the
form of webinar or downloadable program. For example, a webinar on e-filing
will be held on September 10 from 12:00-1:00PM. If you can’t commit to a
specific time, don’t worry. You can also download on-demand programs to
complete on your own time such as Going Paperless: How to Turn Magical Thinking into a
Reality.

What is the breadth of
program types currently available?

Despite the recency of
the technology requirement, the North Carolina Bar Association offers a large
variety of topics from which to choose. From e-discovery and
litigation management to cybersecurity’s impact on legal ethics, the available
subject matter is quite expansive.

Following Florida’s
lead, North Carolina became the second state to
require its attorneys to complete technology training as part of its CLE
requirements. Due to the novelty of adopting such a requirement, an inevitable
question arises: Is the requirement necessary? According to the Chair of the
American Bar Association’s Center for Innovation, Andrew Perlman, the answer is
yes. He echoed his support for North Carolina by stating, “The change
sends an important message: that lawyers need to understand how technology is
affecting the delivery of legal services.”

Perlman’s point is
certainly worth nothing. Among other legal technology developments last year, Harvard Law completed an extensive project in
which it digitized 6.4 million United States cases dating back to 1658. Coupled
with ever-growing research tools such as the AI-supported Westlaw Edge by Thomas Reuters, technology is booming in the legal field. And despite the
occasional headaches it produces, technology ultimately makes the workplace
more efficient, capable, and interconnected.

So, regardless of practice field or career path, the newly refined CLE program will benefit all North Carolina attorneys; even if you’re one who despises technology, you can content yourself with the fact that you’ll have a ‘tech savvy’ conversation starter for your next social gathering.

]]>Winning the Battle but not the War: Oklahoma ex rel. Hunter an Important Victory in Opioid Epidemic, but Blockchain Technology may Further Helphttp://ncjolt.org/winning-the-battle-but-not-the-war-oklahoma-ex-rel-hunter-an-important-victory-in-opioid-epidemic-but-blockchain-technology-may-further-help/
Mon, 02 Sep 2019 21:41:27 +0000http://ncjolt.org/?p=6332The opioid epidemic is one that has garnered significant attention, warranting governmental efforts to reduce the substantial misuse of opioids and the addiction and overdose deaths that occur as a result thereof both nationally and locally. Such efforts should come as no surprise. The misuse of opioids continues to increase nationwide. The Centers for Disease […]

The opioid epidemic is one that has garnered significant attention, warranting governmental efforts to reduce the substantial misuse of opioids and the addiction and overdose deaths that occur as a result thereof both nationally and locally. Such efforts should come as no surprise. The misuse of opioids continues to increase nationwide. The Centers for Disease Control and Prevention have attributed approximately 68 percent of the more than 70,200 overdose deaths that occurred in 2017 to the misuse of opioids, a statistic six times higher than that first documented in 1999. On average, approximately 130 Americans die every day from an opioid overdose.

The state and federal administrative and legislative apparatuses, however, are ill-equipped to alleviate the epidemic on their own, resulting in the snowballing of individuals seeking remedies against the multibillion-dollar manufacturers and marketers of opioids by means of the judiciary.

Indeed, last Monday, August 26, 2019, Judge Thad Balkman, of the District Court of Cleveland County, Oklahoma, held a manufacturer and marketer of opioids partially liable for the epidemic in the first ruling of its kind in American history.

In Oklahoma ex rel. Hunter v. Purdue Pharma L.P., Judge Balkman ruled that the state had met its burden of demonstrating that the misleading marketing of opioids by the defendants constitutes a public nuisance, endangering the health and safety of thousands of Oklahomans. The attorneys representing the defendants maintained that a theory resting upon a claim of public nuisance had previously been restricted to litigation concerning public and private property.

Nonetheless, Johnson and Johnson, as well as its subsidiary, Janssen, were held to have understated the risk of addiction posed by the misuse of opioid painkillers Duragesic, Nucynta, Tylenol with Codeine, Tylox, Ultracet, and Ultram, ignoring decades of scientific research on the risk and instructing their sales representatives to concentrate their efforts upon high-opioid-prescribing physicians and to inform them that the risk is drastically lower if the opioids are prescribed thereby.

Oklahoma Attorney General Mike Hunter Mike Hunter claimed that the defendants had “embarked on a cynical, deceitful, multibillion-dollar brainwashing campaign to establish opioid analgesics as the magic drug.” Judge Balkman thereby held the defendants liable for damages in the amount of $572 million, placating one year of costs expected to be assumed by the state of Oklahoma in its thirty-year, $17.5 billion-effort to reduce the misuse of opioids by Oklahomans and the addiction and overdose deaths that occur as a result.

Purdue Pharma, the manufacturer of OxyContin, and Teva Pharmaceutical, some of the other defendants named in Oklahoma ex rel.Hunter, each had reached $270 million and $85 million settlements with the state of Oklahoma prior to the commencement of trial, escaping any admission of liability that may have been imposed upon them by Judge Balkman as a result.

Oklahoma ex rel.Hunter is significant in its implications. Noramco, one of the other subsidiaries of Johnson and Johnson, is the largest manufacturer of codeine, hydrocodone, morphine, and oxycodone in the United States. The case has been thought of as the holy grail for the plaintiffs bringing the approximately two thousand pending cases against Johnson and Johnson, Purdue Pharma, Teva Pharmaceutical, and other manufacturers and marketers of opioids, each of which were recently consolidated and removed to the U.S. District Court for the Northern District of Ohio in what is likely to become one of the most complicated and consequential trials ever held. The trial is scheduled for October 21, 2019.

“Given the scale of the crisis,” noted the Financial TimesEditorial Board, “addressing it effectively requires using far more tools than just the law courts.” One of the principal explanations as to the misuse of opioids is the lack of awareness by physicians of the addictive behaviors of their patients. Blockchain technology, wherein patient records may be securely shared across a network of healthcare providers, however, may increase such awareness, equipping providers with knowledge regarding the amount and types of opioids prescribed to patients by other sources.

Intel Corp., for instance, has collaborated with healthcare providers to track opioid prescriptions from the manufacturer to the patient, eventually to the point at which the patient ingests the opioid, thereby enabling providers to detect and prevent “double doctoring,” whereby a patient receives more than one prescription from multiple providers. The technology further enables the U.S. Food and Drug Administration to identify and raise regulatory violations against “pill mills,” those providers that prescribe more opioids than is necessary.

Under Title II of the Drug Supply Chain Security Act, for instance, all prescriptions are required to contain such traceable technology as a two-dimensional barcode. The Act, however, is continually being phased in through 2023. Some states, such as North Carolina, have grown impatient and taken matters into their hands. The University of North Carolina at Chapel Hill Healthcare System, for instance, recently announced plans to integrate its own, institutional prescription reporting system with that of the state, demonstrating the willingness of large healthcare providers to adopt technologies akin to blockchain. Whether attributable to the adoption of such technologies or not, the state of North Carolina has seen overdose deaths that occur as a result of the misuse of opioids decrease for the first time in five years.

Several states have adopted similar prescription reporting programs. However, in not incorporating blockchain technologies, such states have experienced a lag time anywhere between a few days and a few weeks in reporting prescriptions. “It’s fairly easy to game a national database of prescriptions, providers, and patients,” said computer programmer, systems analyst, and industry consultant Josh Greenbaum. “But making the drugs traceable provides a much more comprehensive view of what each party is doing with the opioids.”

Indeed, “one large, immutable, secure, trusted, decentralized, real-time, nationwide, cost-effective database that is HIPAA compliant could go a long way toward addressing the opioid epidemic,” writes Dr. Meda Raghavendra. “Blockchain does exactly that. Accordingly, startup BlockMedx has developed a blockchain-based prescription reporting system, claiming to be the “world’s first and only completely secure, HIPAA-compliant, end-to-end solution for transmitting DEA Controlled Drug prescriptions such as prescription opioid pain relievers and others, from physicians to pharmacies using the Ethereum blockchain.” Other startups have eagerly jumped on board. Deloitte found, in a survey conducted last year, that approximately 30 percent of life sciences organizations have already invested in blockchain technologies.

Thus, while Oklahoma ex rel.Hunter serves as an important victory in the opioid epidemic, litigation cannot be the only solution thereto, even when accompanied by legislation and regulation.

The adoption of technologies akin to blockchain by healthcare providers, opioid manufacturers and marketers, and state and federal governmental agencies may prove just as fruitful in winning the war, and not just the battle.

]]>CONtroversy in Health Care: A Hard Look at North Carolina’s Certificate of Need Lawshttp://ncjolt.org/controversy-in-health-care-a-hard-look-at-north-carolinas-certificate-of-need-laws/
Mon, 20 May 2019 20:46:43 +0000http://ncjolt.org/?p=6302As health care costs continue to rise in the United States, patients are frequently exposed to unaffordable and unpredictable medical bills. In North Carolina, diagnostic imaging services such as MRI scans can cost patients more than a month’s income. In response to this, physicians like Dr. Singh of Winston-Salem, North Carolina, have attempted to part […]

]]>As health care costs continue to rise in the United States, patients are frequently exposed to unaffordable and unpredictable medical bills. In North Carolina, diagnostic imaging services such as MRI scans can cost patients more than a month’s income. In response to this, physicians like Dr. Singh of Winston-Salem, North Carolina, have attempted to part ways with major hospitals in order to offer quality medical procedures at lower, transparent prices. In states like North Carolina, however, Certificate of Need (“CON”) requirements prevent them from doing so by denying entities the ability to purchase major medical equipment or to open new facilities. Although CON programs were intended to lower health care spending when first implemented in the 1970s, the federal government has long-since declared these laws ineffective and even detrimental to health care spending and health care quality in the United States. However, CON programs have remained in effect in many states due to powerful lobbying and legislative resistance to reform. State CON programs, no matter the goals behind them, function to insulate incumbent providers from competition and allow those providers to set prices for services at arbitrarily high rates. In 2018, Dr. Singh filed a law suit against the North Carolina Department of Health and Human Services alleging that North Carolina’s CON statute violates his personal rights to economic substantive due process and equal protection under the North Carolina Constitution, as well as the state’s constitutional prohibition on monopolies and exclusive emoluments. North Carolina’s judicial branch has the opportunity to decide this case based on the traditional deference given to the state when applying the rational basis test, or by looking at the evidence presented and perhaps concluding that it does not support a finding of rationality.

]]>Cryptocurrency Mining: The Challenges it Faces and How New Regulations Can Helphttp://ncjolt.org/cryptocurrency-mining-the-challenges-it-faces-and-how-new-regulations-can-help/
Mon, 20 May 2019 20:43:27 +0000http://ncjolt.org/?p=6300The prevalence and importance of cryptocurrency has significantly increased since the introduction of Bitcoin just over ten years ago. Today, there are over 1,000 different cryptocurrencies, and recently the combined market capitalization of these cryptocurrencies peaked at over 750 billion dollars. A critical component of any cryptocurrency is the transaction verification through mining. However, cryptocurrency […]

]]>The prevalence and importance of cryptocurrency has significantly increased since the introduction of Bitcoin just over ten years ago. Today, there are over 1,000 different cryptocurrencies, and recently the combined market capitalization of these cryptocurrencies peaked at over 750 billion dollars. A critical component of any cryptocurrency is the transaction verification through mining. However, cryptocurrency mining is facing significant challenges that must be solved in order for cryptocurrencies to continue their growth. Therefore, this recent development proposes regulations to address four specific challenges faced by cryptocurrency mining: energy consumption, miner consolidation, encryption security, and miner income volatility.

]]>Someone Else May Own a Piece of You: Lack of Federal Regulation over Direct-to-Consumer DNA Test Kitshttp://ncjolt.org/someone-else-may-own-a-piece-of-you-lack-of-federal-regulation-over-direct-to-consumer-dna-test-kits/
Mon, 20 May 2019 20:40:57 +0000http://ncjolt.org/?p=6298Direct-to-consumer DNA test kits, such as those sold by Ancestry and 23andMe, are now more popular than ever. These test kits require a consumer to submit a personal DNA sample in exchange for detailed results about the consumer’s ancestry. Although about half of the United States has a genetic privacy law, they vary in strictness […]

]]>Direct-to-consumer DNA test kits, such as those sold by Ancestry and 23andMe, are now more popular than ever. These test kits require a consumer to submit a personal DNA sample in exchange for detailed results about the consumer’s ancestry. Although about half of the United States has a genetic privacy law, they vary in strictness and applicability to direct-to-consumer DNA test kits. There is currently no federal law regulating the test kit companies’ control over the DNA samples they collect, leaving the direct-toconsumer DNA test kit industry largely self-regulated. The company policies which regulate their own control over consumer DNA can leave room for interpretation about the limits of such control. This lack of clear government oversight, in addition to the inherent value of consumer DNA, creates a strong demand for an all-encompassing federal law that creates uniform collection, storage, and use of genetic information. Analysis of state genetic privacy laws provides a building block upon which an effective federal genetic privacy law can be constructed.

]]>Academic Espionage: Striking the Balance Between Open and Collaborative Universities and Protecting National Securityhttp://ncjolt.org/academic-espionage-striking-the-balance-between-open-and-collaborative-universities-and-protecting-national-security/
Mon, 20 May 2019 20:37:32 +0000http://ncjolt.org/?p=6296American universities and research laboratories strive to foster open, collaborative spaces, where students from all over the world can come to learn from leading academics in their field of study. However, some people believe this open and collaborative environment is threatened by international students who are coming not to add to the environment, but rather […]

]]>American universities and research laboratories strive to foster open, collaborative spaces, where students from all over the world can come to learn from leading academics in their field of study. However, some people believe this open and collaborative environment is threatened by international students who are coming not to add to the environment, but rather to take from it. Academic espionage is not a new problem, but it is a problem that the Trump administration and Congress are working diligently to solve. Lawmakers, administrative agencies, and universities are striving to determine whether there are enough safeguards in place to protect the United States’ intellectual property. Alternatively, others are wondering whether the restrictions being put in place are truly necessary or if they are instead hindering the open exchange of ideas that is needed to advance science and research. This Recent Development argues that better awareness about academic espionage, not more safeguards, is required to protect the United States’ academic institutions.

]]>Out-Teching Products Liability: Reviving Strict Products Liability in an Age of Amazonhttp://ncjolt.org/out-teching-products-liability-reviving-strict-products-liability-in-an-age-of-amazon/
Mon, 20 May 2019 20:34:23 +0000http://ncjolt.org/?p=6289From humble beginnings as an internet start-up in the mid– 1990s, Amazon has transformed itself into the prodigious and omnipresent e-commerce Leviathan of the early twenty-first century, cashing in on a society and economy increasingly comfortable with — and dependent on — technology-based services. In addition to its recent forays into brick-and-mortar grocery stores, film and television production, fast-fashion, […]

]]>From humble beginnings as an internet start-up in the mid– 1990s, Amazon has transformed itself into the prodigious and omnipresent e-commerce Leviathan of the early twenty-first century, cashing in on a society and economy increasingly comfortable with — and dependent on — technology-based services. In addition to its recent forays into brick-and-mortar grocery stores, film and television production, fast-fashion, cloud computing, consumer data analytics, and delivery and logistics services, Amazon is most wellknown as the force behind a multi-billion dollar online marketplace where its own products are listed for sale next to products listed by third-party vendors.

Grievous injuries and property damage resulting from defective third-party products sold through Amazon’s marketplace have been the issue of a number of recent lawsuits alleging strict products liability against Amazon itself. The courts that heard these cases refused to extend strict liability to Amazon, but this recent development argues that these decisions run afoul of the spirit of the American strict products liability regime that emerged in the mid– twentieth century. American courts recognized that the imposition of strict liability on manufacturers, distributors, and retailers alike for injuries caused by defective products that they placed into the consumer marketplace had multiple desirable social purposes that warranted shifting the loss from consumers to members of the distribution chain.

After briefly surveying the history and intent behind the original American strict products liability regime, this recent development explores how Amazon “out-teched” products liability in four recent cases and considers why the current standard of negligence is insufficient to protect consumers in the modern economy. It concludes with an explanation of how and why courts should refocus their jurisprudence on the original policy goals expressed in the seminal products liability cases of the mid-twentieth century.